Guest Post by Tavo T. True-Alcala

Earlier this year, the Thai Meditation Association of Alabama and several individual plaintiffs (“the Center”) filed suit against the City of Mobile, Alabama (“the City”), alleging that the denial of its application to operate a meditation center in a residential area was a violation of its rights under RLUIPA on three counts. Specifically, the complaint claims that the City of Mobile’s Zoning Ordinance, both on its face and as applied, violates the Center’s rights as a religious institution by substantially burdening its religious exercise, discriminating on the basis of religion, and treating it on less than equal terms. The complaint also alleges that the Center was misled by City officials when it was encouraged to apply for a planning use approval, which is the appropriate zoning relief for religious organizations seeking to locate in a residential zone, rather than a use variance which is required for  commercial uses in residential zones. The City denied the Center’s application because it ultimately concluded that the Center’s proposal was for a commercial, not religious, use. Further details of this case can be found in our previous post.  Most recently, the court decided the City’s Motion to Dismiss, granting the dismissal of the Center’s facial RLUIPA claims, but denying its request to dismiss the claim of negligent misrepresentation.

The City claimed that the facial challenges presented in the Center’s complaint are not supported by any reference to specific provisions of the Zoning Ordinance that allegedly violate RLUIPA on their face. According to the City, the Zoning Ordinance is, on its face, neutral, and “does not discriminate between similar religious and non-religious entities or uses, and does not place a ‘substantial burden’ on Plaintiffs’ religious exercise,” and therefore contended that the facial allegations should be dismissed. The City further averred that as the Center knew its anticipated use was subject to City approval, and that this knowledge precludes a claim of misrepresentation, whether or not the application was denied.

On October 12, an Alabama federal magistrate judge issued a report recommending that the City’s motion be granted as to all facial claims, but denied as to the claim of negligent misrepresentation.  In considering the facial challenges, the magistrate judge found that the Zoning Ordinance does not on its face infringe upon the rights of any religious organization by imposing a substantial burden on religious exercise, discriminating on the basis of religion, or causing unequal treatment.   The magistrate judge further distinguished facial and as applied claims by reasoning that including the specific instance of the denial of the Center’s application in the consideration of the facial challenges “would risk emptying the ‘as-applied’ challenge of its meaning.”

While the motion to dismiss the facial challenges was granted, the magistrate judge did not recommend dismissal of the negligent misrepresentation claim. The City argued that the Center could not have relied on the staff representations since it still required City approval of its intended use. The magistrate judge disagreed, finding  persuasive the Center’s allegation that it relied on misrepresented information to determine that the planning approval process was appropriate, rather than the variance use process.

After due and careful consideration, the district judge ordered the recommendations be adopted, granting the dismissal of the facial challenges but denying the dismissal of the negligent misrepresentation challenge.

Original Photo by Moyan Brenn, some rights reserved.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.